High court tells Trillian: ‘Pay back the Eskom money’

Trillian has been ordered to pay Eskom the nearly R600-million it irregularly paid the Gupta-linked consulting company.

A Pretoria high court judgment, handed down on Tuesday, declared the payments made by Eskom to Trillian “unlawful and invalid”.

“Trillian is ordered to repay to Eskom the sum of R595 228 913.29 together with interest thereon at the prescribed rate, calculated from the date of judgment to date of payment,” the judgment reads.

Trillian has also been ordered to pay the costs of the court application.

The high court judgment — delivered by judges Selby Baqwa, Moara Tsoka and Dawie Fourie — forms part of Eskom’s battle to claw back the almost R2-billion it paid to global consulting firm Mckinsey and Trillian.

Eskom first brought its application to the court in March last year. The embattled power utility sought to undo the decisions taken by former board members and executives that resulted in R1.6-billion in allegedly unlawful payments being made to the two companies.

McKinsey agreed to pay back R902-million to Eskom in July last year. But Trillian opted to oppose Eskom’s application in court, arguing that it earned its almost R600-million in paychecks by providing extensive services to the utility.

Trillian has, since 2016, fielded allegations of profiting from state-owned entities, allegedly because of its ties to the Gupta family. Eskom’s application to the high court a year ago formed part of the new board’s attempts to undo years of alleged maladministration.

In court, Eskom argued that Trillian — established by Eric Wood and Gupta lieutenant Salim Essa — benefited from unlawful and corrupt dealings. But Trillian contended that the case for corruption was “flimsy at best” and based on disputed facts.

Counsel for Trillian Mike Hellens SC argued that allegations of corruption against his client are disputed and cannot be resolved without cross-examination.

But the high court judgment opposed this view: “It is indeed foolhardy to expect the very persons who either acted unlawfully or fraudulently to depose to confirmatory affidavits. In addition, the interest of justice would not only be frustrated by the non-admission of the evidence on the basis that such evidence is hearsay, but this rejection of such evidence would benefit the wrong-doers.”

The judgment also supports the view that a corrupt relationship existed between Essa and former senior Eskom officials, including Anoj Singh and Matshela Koko.

“It is common cause that it is the same officials who fast-tracked and facilitated payments to Trillian when there was neither factual nor legal basis to do so,” the judgment reads.

The judgment adds: “Corruption is the only issue that Trillian seems, even so feebly, to put in issue. Upon examination of the undisputed facts it seems that even on this aspect Trillian fails to make out a case.”

The court agreed with Eskom that the “only and effective remedy, that is just and equitable” is for Trillian to pay back the R600-million.

“This will not only be just and equitable, but will be to strengthen the rule of law, the very foundation of any constitutional state such as ours,” the judgment reads.

Read the full judgment below:

Eskom Holdings SOC Ltd v McKinsey & Co. SA (Pty) Ltd. & 4 Others – 18 June 2019 by Mail and Guardian on Scribd

Sarah Smit
Sarah Smit
Sarah Smit is a general news reporter at the Mail & Guardian. She covers topics relating to labour, corruption and the law.
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